COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ramgadoo, 2012 ONCA 921

DATE: 20121227

DOCKET: C52659

Laskin, Feldman and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Ramgadoo

Appellant

Paul Calarco, for the appellant

Karen Papadopoulos, for the respondent

Heard: April 24, 2012

On appeal from the sentence imposed on February 16, 2010 by Justice Donald J. Halikowski of the Ontario Court of Justice.

Feldman J.A.:

OVERVIEW

[1] On February 12, 2008, Christopher Ramgadoo pled guilty to aggravated sexual assault, sexual interference, unlawful confinement, attempted choking, and breach of probation. The convictions stemmed from an attack on a 13-year-old girl.

[2] Because of the appellant’s record for sexual assault of an 18-year-old woman, as well as for assault and criminal harassment of another woman, the Crown sought a dangerous offender designation. During the 14-day hearing, it was agreed that the appellant satisfied the statutory criteria for a dangerous offender designation under s. 753(1) of the Criminal Code.

[3] Consequently, the only issue at the hearing was whether there was a reasonable possibility that the risk posed by the appellant could be eventually controlled in the community pursuant to s. 753.1 of the Code. If a reasonable possibility of control existed, this provision, as it has been interpreted by the Supreme Court of Canada in R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357, at paras. 32 and 40, would have mandated the court to declare the appellant a long-term offender rather than a dangerous offender and to impose a determinate sentence and a long-term supervision order rather than an indeterminate sentence.[^1]

[4] On February 16, 2010, the sentencing judge found that there was no reasonable possibility that the risk posed by the appellant could be eventually controlled in the community, declared the appellant a dangerous offender, and imposed an indeterminate sentence. The appellant was 33 years of age at the time of sentencing.

[5] On this appeal, the appellant submits that the sentencing judge failed to consider how recidivism would be reduced by both the natural aging of the appellant and by making a regime of medications a condition of a long-term supervision order that would be enforced by the National Parole Board.

[6] For the following reasons, I would dismiss the appeal.

The Predicate Offence

[7] On April 9, 2007, the 13-year-old victim was waiting on a bench at the front of her building for a friend to arrive. Uninvited, the appellant sat down beside her. He asked her a number of questions and then kissed her. She pushed him away and went into the lobby of the building.

[8] The appellant followed her into the building. He grabbed her as she tried to escape and began choking her, threatening to kill her if she screamed. He dragged her down the hall and into the stairwell and continued to choke her as he dragged her up the stairs to the elevator control room. The appellant demanded that she remove her clothes. When she refused, he pushed her to the ground, rolled her onto her back and resumed choking her. The appellant bit her face and smashed her head against the concrete floor. The victim finally removed her clothes.

[9] The appellant returned to choking the victim before forcibly raping her until he ejaculated. He did not use a condom. The victim was then forced to perform fellatio on the appellant. He ejaculated in her mouth. He left her lying on the floor.

EVIDENCE AT THE SENTENCING HEARING

Prior Criminal Record

[10] The appellant’s criminal record, dating back to 2003, was entered as an exhibit at the hearing. His record included prior convictions for assault, criminal harassment, breach of a conditional sentence order and sexual assault. The assault, criminal harassment and breaches arose out of a series of incidents in 2003 and 2004 involving the owner of a tanning salon, the most serious of which involved the appellant choking the woman. The sexual assault conviction was based on a random attack on an 18-year-old woman in 2005.

Evidence of Correctional Services Officers

Sherri Roussell

[11] Ms. Roussell is a parole office supervisor with the Correctional Service of Canada. She gave her understanding of the Parole Board’s authority to decide if an offender who has been released pursuant to a long-term sentencing order could be charged with the offence of breaching that order under s. 753.3 of the Code. When an offender is convicted under that provision, the long-term supervision order is suspended for the period of incarceration, which can be up to 10 years.[^2]

Kimberly Vink

[12] Ms. Vink was the appellant’s probation officer between 2004 and 2007 and is specially trained in the risk assessment and identification of sexual offenders. According to Ms. Vink, although the appellant was generally compliant about reporting and signing consents to release information, he showed little insight into his offending conduct and was generally “not eager” to engage in sexual offender counselling. He suggested “at almost every appointment” that he felt fine and wanted to reduce or stop his medication, despite constant reminders that the failure to take his medication would increase his risk of reoffending.

Alan Fair

[13] Mr. Fair is a registered social worker who specializes in providing counselling services to sexual offenders on release into the community. He counselled the appellant at various times between 2004 and 2007. He last visited with the appellant on April 4, 2007, five days before the appellant committed the predicate offence. At that time, the appellant informed Mr. Fair that he was “feeling a lot better and doing a lot better”. Mr. Fair was of the opinion that the appellant “was probably the most coherent [he] had seen him.” The appellant also confirmed that he had been taking his medications and that he had not been using alcohol or drugs, although it later became apparent that the appellant had deceived Mr. Fair in this regard.

Expert Evidence

Dr. Philip Klassen

[14] Dr. Philip Klassen was the psychiatrist called as the Crown’s expert witness. In a report dated August 30, 2008, he stated that the appellant suffered from an anti-social personality disorder, schizophrenia, a paraphilia or paraphilias (connected to his coercive sexual preference) and substance abuse disorders.

[15] Based on a variety of tests of the appellant, Dr. Klassen concluded that he was at a “high risk of re-offence.” During examination-in-chief, Dr. Klassen referred to the risk as both “fairly high” and simply as “high”, adding that the appellant’s score on risk assessment instruments demonstrates that his “risk to reoffend sexually is at or greater than about 90 per cent of convicted sex offenders.” Dr. Klassen described the appellant before the court as “at the high end of the LTO range or the low end of the DO range.”

[16] As Dr. Klassen was confident that the appellant met the criteria for a dangerous offender designation, the majority of his analysis was focused on whether the appellant also met the criteria for a long-term offender designation. For the purpose of these reasons, I review his evidence on the two points raised on appeal: first, the evidence concerning any age-related reduction in the risk posed by the appellant; and second, the evidence concerning both the potential efficacy of medication in controlling the risk posed by the appellant and the likelihood that the appellant would be compliant with a medication regime.

[17] With respect to age-related reduction in risk, Dr. Klassen noted in his report that persons with a paraphilic coercive disorder “tend to experience age-related decline in their propensity for such behaviour at some point, typically in their forties.” He added during examination-in-chief that in the case of “stranger rapes”, “offending, by the time a person is into their fifties, numerically essentially hits zero.”

[18] In the appellant’s case, however, Dr. Klassen qualified this opinion by saying that these statistics are derived from studies of sex offenders, few of whom also have schizophrenia, and that the appellant’s schizophrenia makes it possible that a violent offence could be committed at a more advanced age.

[19] On the subject of the appellant’s treatment prospects, Dr. Klassen wrote in his report that the appellant was “not a particularly good treatment candidate”. During examination-in-chief, he elaborated on this point by saying that the appellant has “been quite compliant with treatment and management suggestions in an institution… but in the community his approach to psychiatric care and medication use was quite different.” Dr. Klassen noted that if the appellant were released, he would initially breach his conditions as a way of testing them.

[20] On the specific point of the efficacy of the injectable drugs at issue, Dr. Klassen noted during examination-in-chief that although “people think that there is magic in delivering an injection”, this approach is still dependent on the patient self-reporting whether, for example, he is still “having arousal to the thought of rape”. Nevertheless, when pressed during cross-examination on how the appellant might respond to the strongest form of sex drive reducing medication (which had never been administered to him before), Dr. Klassen stated:

[W]e can’t really state it with certainty because we don’t really have an antecedent history of looking at this in Mr. Ramgadoo, but really if he was willing, you know, I think Mr. Ramgadoo is two injections a month away from a much better lifestyle. If he took antipsychotic medication by injection and if he took sex drive reduction by injection, I think he’s a person whose risk would go way down, but he needs to take it and he needs to take it consistently.

[21] Dr. Klassen concluded his report with the following opinion:

If this gentleman were to be released to a community correctional facility (and thereafter were to live only in accommodation approved by the National Parole Board), and if he were to be consistently treated with antipsychotic medication, and if conditions were in place to monitor and manage his substance use, and particularly if this gentleman was on injectable sex-drive reduction, and if the foregoing could be maintained for a period of time that would take this individual into, at least, his mid-forties, then, from a psychiatric perspective, I would be prepared to support the notion of “reasonable possibility of eventual control of the risk in the community”. While on prior releases… when this gentleman became noncompliant with medication use… there appear to have been insufficient levers available to intervene, resulting in the cascade that led to Mr. Ramgadoo’s offending. Given that Mr. Ramgadoo chafes at the notion of external controls… future efforts at community supervision will need to be such that there is leverage for quick and substantial intervention… at any suggestion of non-compliance with conditions of his release.

Dr. Mark Pearce

[22] Dr. Mark Pearce was the psychiatrist called as the expert witness for the defence. In his report dated December 15, 2009, he diagnosed the appellant with essentially the same conditions that Dr. Klassen had: schizophrenia, polysubstance dependence, paraphilia (connected to his coercive sexual preference), and anti-social personality disorder.

[23] Dr. Pearce also ran a variety of tests to determine the likelihood that the appellant would reoffend. On one of them, Dr. Pearce concluded that the appellant’s score suggested a “high risk of future violent (including sexual) recidivism.” On another, the appellant’s score was “indicative of a high risk of future violent behaviour, absent significant interventions.” In examination-in-chief, Dr. Pearce acknowledged that his test results did not differ much from those of Dr. Klassen. In cross-examination, Dr. Pearce acknowledged that his report was “fairly consistent” with that of Dr. Klassen.

[24] As Dr. Pearce was also confident that the appellant met the criteria for a dangerous offender designation, the majority of his report was focused on whether the appellant met the criteria for a long-term offender. As I did with Dr. Klassen’s evidence, for the purposes of these reasons, I focus my review of Dr. Pearce’s evidence on the two issues raised on appeal: first, whether there is any age-related reduction in the risk posed by the appellant; and second, the efficacy of an enforced regime of medications in controlling that risk.

[25] On the first issue, Dr. Pearce did not make any comment in his report on whether there is any age-related reduction in the risk. His only testimony that pertained to this point emerged in cross-examination. He agreed with Dr. Klassen that there is an age-related decline in sexual assaults against strangers and noted that “we don’t know a lot” about sex offenders who have schizophrenia.

[26] Turning to the second issue, in terms of drug treatments, Dr. Pearce carefully articulated in his report what medications he thought would be appropriate for each of the appellant’s conditions. He stated that an injectable schizophrenia medication would “greatly assist in ensuring that Mr. Ramgadoo is compliant with prescribed medication.” When discussing a recommended antipsychotic drug, Dr. Pearce noted that the appellant’s “psychotic disorder is relatively treatment responsive, which is a favourable prognostic indicator.” Dr. Pearce was less optimistic about the appellant overcoming his substance dependencies and his anti-social personality disorder.

[27] As for the appellant’s paraphilia, Dr. Pearce agreed with Dr. Klassen that libido reducing medication would be necessary, stating that it “would be an essential risk management strategy.” During examination-in-chief, Dr. Pearce elaborated on this point, noting that a sex drive reducing medication, delivered via injection, “would be very helpful in reducing his risk for re-offence.” If all these medications were taken, Dr. Pearce opined that the “risk of re-offence would be dramatically lowered”.

[28] On cross-examination, when asked specifically about the efficacy of sex drive reducing medication, Dr. Pearce stated that there are “not really any good studies about it”. While clinical experience suggests that such drugs reduce the recidivism of sex offenders, he stated: “certainly people have reoffended on sex [drive] reducing medications.”

[29] On the prospects of the appellant actually taking all these medications, Dr. Pearce stated in his report that it was a “positive indicator that Mr. Ramgadoo is willing to accept and participate in various treatments” and that with the “close and intense monitoring” of a long-term supervision order, the risk posed by the appellant could be managed “adequately”. Noting the appellant’s history of taking his medications when in jail but not when he is in the community, Dr. Pearce recommended long-term injectable medication so that compliance could be monitored. On cross-examination, Dr. Pearce was asked whether, owing to the appellant’s set of diagnoses being “quite unusual”, it became “somewhat speculative to determine how successful certain treatment will be”. He agreed that this was “somewhat true.”

[30] Ultimately, Dr. Pearce summarized his conclusion in his report as follows:

In summary, the possibility that Mr. Ramgadoo will be manageable in the community upon the expiry of his LTSO is somewhat mixed. The fact that he is agreeable to a variety of programming is a positive prognostic factor, as is his ongoing contact with his family. Intensive treatment in multiple domains, primarily the pharmacological realm, may assist with Mr. Ramgadoo’s propensity to violence (sexual and otherwise). Given these considerations, and weighing the aforenoted factors, I am of the opinion that there is reason for optimism as regards reducing the likelihood of future violent behaviour.

[31] Dr. Pearce expressed a similar conclusion in his oral evidence:

I do think that given the various diagnoses, given the lack of psychopathy, given the treatment prognosis for the diagnosis and his willing[ness] to accept that treatment, that there is some support… that this gentleman could be managed by virtue of a long term supervision order.

THE DECISION OF THE SENTENCING JUDGE

[32] The sentencing judge reviewed the evidence in detail. He began by describing the appellant’s personal history, including early and continuing substance abuse and his failure to go beyond grade 11 in his education. When asked, the appellant said that he personally had suffered sexual abuse but did not want to report it.

[33] The sentencing judge next discussed the appellant’s encounters with the justice system before he was convicted of any offences. He then described the three incidents in which the appellant attacked women that resulted in convictions. The first incident was when he choked the owner of the tanning salon. He received a conditional sentence, which he served in part at the St. Lawrence Valley Corrective Treatment Centre. However, while serving the conditional sentence, the appellant sexually assaulted an 18-year-old female stranger he happened to meet while riding his bicycle.[^3] This sexual assault was also a breach of the conditional sentence, the remainder of which he served in custody concurrently with the 16-month sentence imposed for the sexual assault. One month after his release, the appellant committed the predicate offence, the violent sexual assault of a 13-year-old victim.

[34] The sentencing judge then assessed the appellant’s criminal behaviour. He found that the appellant’s crimes showed a “complete disregard for the physical integrity of the victims”, that his acts “display[ed] no sense of empathy for the victims”, and that “he behaved with utter selfishness – and further terrorized this child by telling her that he would kill her if she reported the incident.”

[35] The next phase of the reasons is a thorough review of the evidence of the two psychiatrists, including their diagnoses and prognoses for the appellant and, importantly, their assessments of his risk to reoffend. The sentencing judge synthesized Dr. Klassen’s opinion from his oral evidence on the appellant’s suitability for treatment as follows:

Dr. Klassen holds the view that the Accused would not be a good treatment candidate in the community. The extent of his various diagnoses and his reaction to Sex Treatment at the St. Lawrence facility suggest strongly that he needs to be managed by means of external controls – that is – controls that do not depend on trusting the Accused to take his medications and engage actively and voluntarily in ongoing therapies.

[36] The sentencing judge also quoted in full Dr. Klassen’s opinion from his report, which is set out above at para. 21 of these reasons. In that report, Dr. Klassen stated that conditions of any release into the community should require the appellant be treated with antipsychotic medication and injectable sex drive reduction medication. I repeat here his conclusion:

Given that Mr. Ramgadoo chafes at the notion of external controls (still expressed to me), perhaps a reflection of his experiences with his parents, future efforts at community supervision will need to be such that there is leverage for quick and substantial intervention (resulting in re-incarceration or return to a community correctional centre) at any suggestion of non-compliance with the conditions of his release.

[37] The sentencing judge noted that Dr. Pearce emphasized that the appellant would have to be trusted to take his medications and to comply with treatment for his paraphilia and with testing for his substance abuse issues while on community supervision. He referred to Dr. Pearce’s “guarded opinion” that the appellant may be manageable in the community, but that the likelihood of success was “somewhat mixed.”

[38] The sentencing judge then referred with great concern to the evidence of the social worker, Mr. Fair. Mr. Fair had contact with the appellant on April 4, 2007. The appellant demonstrated a positive attitude, and Mr. Fair believed the appellant when he said that he was on his medication and abstaining from alcohol. This was only a few days before he committed the predicate violent sexual offence. The appellant’s deception of a very experienced social worker who knew the appellant and knew about his medications and his general attitude regarding reoffending, demonstrated a very concerning ability to manipulate people.

[39] Having found that the appellant satisfied the statutory criteria for a dangerous offender under s. 753(1) the Code, on which both experts agreed, the sentencing judge then considered whether there was a reasonable possibility of eventual control of the appellant’s risk in the community, pursuant to s. 753.1(1) of the Code.[^4]

[40] He concluded that there was no reasonable possibility of eventual control in the community and summarized his reasons as follows:

Given the violent nature of his crimes and the extensive damage he causes by his actions; his lack of empathy for his victims both at the time of the crimes and after his having undergone extensive therapy; his ongoing untrustworthiness to accept judicial and medical intervention to minimize the risks he poses to the community; his proven intentions and refusals to take the required medications necessary to reduce his sexual urges and his psychotic inclinations; his distrust and challenging attitude towards those in authority who are mandated to control his behaviours and the uncertainty and mere speculation that any known therapies or treatments will have the effect of reducing his risk to society given the cluster and interrelationship between his schizophrenia, paraphilia, drug and alcohol addictions and his personality disorder; this Court finds that there is no reasonable possibility of eventual control of the Accused’s risk in the community.

ISSUES

[41] The appellant raises two issues on the appeal. Did the sentencing judge err in imposing a dangerous offender designation on the appellant, rather than a long-term offender designation, by failing to consider: a) the effect of aging or “burn-out” on the appellant’s likelihood to reoffend on release; and b) the terms that the National Parole Board could impose on release, including mandatory antipsychotic and sex drive reducing drugs?

ANALYSIS

Standard of Review

[42] Deference is to be accorded to the sentencing judge on issues of fact-finding and credibility, including the critical question of the reasonable possibility of eventual control of the offender in the community: R. v. R.M., 2007 ONCA 872, 228 C.C.C. (3d) 148, at para. 53.

[43] The appellant submits, nevertheless, that when considering whether the trial judge committed the alleged errors, the court should bear in mind, a) the significant effect the dangerous offender designation has on the offender and on his liberty, and b) it was intended that the designation would apply only where less restrictive means that will adequately protect the public do not exist: Johnson, at para. 44.

Issue 1: Did the sentencing judge err by failing to consider the burn-out effect of aging on the appellant when assessing his future dangerousness and the ability to control his risk to the community in the future?

[44] In his reasons, the sentencing judge did not refer to the “burn-out theory”, the normal tendency for aging to have the effect of reducing the tendency of offenders toward violent sexual assaults. He made no error in not doing so in this case, based on the record before him. Trial counsel for the appellant did not advance the argument following the testimony of the two experts on the issue.

[45] Dr. Klassen testified that generally by age 45 or 50, a sexual offender’s risk of committing a “stranger rape” will be “quite low”, but he was not sure whether that applied in the appellant’s case. The reason was that the appellant is part of a “relatively rare group of people”, as someone diagnosed with both schizophrenia and a paraphilic coercive disorder and who commits stranger rapes. He testified that he had seen offenders with schizophrenia committing violent offences at age 55 and 60, as compared with non-schizophrenic people. He could not tell the court at what age range the appellant would no longer be a concern.

[46] The appellant’s expert, Dr. Pearce, was only asked about the effect of aging in cross-examination by the Crown, not by defence counsel. He said he would not be surprised if Dr. Klassen’s statement that the aging effect may be different with schizophrenics is true.

[47] Based on the state of the evidence before him and the fact that defence counsel did not rely on the aging effect in his submissions, there was no basis and no reason for the sentencing judge to refer to the aging effect as a consideration in his assessment of the ability to control the risk to the community of the appellant reoffending in the future.

Issue 2: Did the trial judge err by failing to determine whether the appellant would be amenable to taking injectable treatment drugs and, if so, by failing to consider a long-term supervision order that would include a mandatory treatment order by the Parole Board as a condition of release?

[48] The appellant’s position is that the sentencing judge did not consider the full panoply of controls available under the long-term offender regime. In particular, he did not consider the use of a mandatory drug treatment order enforceable as a condition of a long-term supervision order. By not considering that option, the sentencing judge erred in law by limiting his discretion.

[49] The appellant submits that the Parole Board may order treatment as a condition of a long-term supervision order where three conditions are met: 1) drug treatment for the offender is necessary for the protection of the public; 2) a doctor determines the required treatment protocol; and 3) the offender is willing to consent to the treatment. If that is the case, a sentencing judge who is considering whether to order a long-term offender designation should take into account the potential for mandatory medication to control the offender’s risk of reoffending.

[50] The appellant acknowledges that because no person can be forced to take medication against his or her will, a long-term offender who is subject to a mandatory order may refuse treatment. In the case of a refusal, s. 753.3 of the Code could be employed. It provides an offence punishable by a maximum sentence of 10 years for a breach of a long-term supervision order. If the appellant were to be convicted of failing to comply with his long-term supervision order and sentenced to a term of imprisonment, then under s. 753.4, the long-term supervision would be interrupted unless the court ordered its termination or reduction.

[51] Those sections provided:[^5]

753.3 (1) An offender who is required to be supervised by an order made under paragraph 753.1(3)(b) [a long-term supervision order] and who, without reasonable excuse, fails or refuses to comply with that order is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

753.4 (1) If an offender who is required to be supervised by an order made under paragraph 753.1(3)(b) commits one or more offences under this or any other Act and a court imposes a sentence of imprisonment for the offence or offences, the long-term supervision is interrupted until the offender has finished serving all the sentences, unless the court orders its termination.

(2) A court that imposes a sentence of imprisonment under subsection (1) may order a reduction in the length of the period of the offender’s long-term supervision.

[52] The appellant quarrels with the sentencing judge’s determination that, based on his past non-co-operation with treatment programs, it was speculative that treatments or therapies would reduce the risk that the appellant would reoffend. He made this determination on the basis that the appellant’s treatment would be strictly voluntary. He did not consider the effect that a mandatory treatment order by the Parole Board might have on the appellant’s incentive to comply with that order and co-operate with treatment.

[53] In this context, the appellant raises the issue of whether the Parole Board can order mandatory drug treatment as a condition of a long-term supervision order and whether a sentencing judge can so assume when considering a long-term offender designation. In R. v. R.B., 2011 ONCA 328, 280 O.A.C. 329, at para. 12, this court acknowledged that a Parole Board has the power to make taking medication a condition of a long-term supervision order, but on the understanding that such an order does not mean that the person would or could be physically forced to take medication. Rather, if the person does not consent to take the medication when required to do so under the terms of the order, that could then amount to a breach of the condition under s. 753.3(1) unless the person “had a reasonable excuse for refusing to take the prescribed medication” (at para. 13).

[54] The appellant acknowledges that when an offender says he is not willing to have treatment, that likely indicates that he is not motivated to change and, therefore, he is more likely to be designated a dangerous offender. However, when the person is willing to accept treatment, the court can recommend treatment as a condition of the long-term supervision order and the Parole Board can make it a condition when the time comes for the person’s release, following service of the definite term imposed. Before a court recommends enforceable treatment, it should be convinced, on balance the appellant submits, that the offender is willing to participate in treatment.

[55] The appellant’s position is that in this case, the sentencing judge did not consider whether making treatment a condition of his release as a long-term offender with enforcement consequences if he did not comply could reduce the risk that he would reoffend. He submits that a new hearing is required for the court to specifically consider this issue and that an appellate court is not able to make the necessary findings regarding the appellant’s willingness to engage in treatment without hearing the evidence.

[56] The problem with this submission is that for this offender, the suggested condition precedent to the recommendation of a mandatory treatment order was not met: the sentencing judge was not convinced on a balance of probabilities that the appellant was willing to engage in treatment. He focused on the appellant’s “ongoing untrustworthiness to accept judicial and medical intervention to minimize the risks he poses to the community; his proven intentions and refusals to take the required medications necessary to reduce his sexual urges and his psychotic inclinations; his distrust and challenging attitude towards those in authority who are mandated to control his behaviours….” (See para 40 above.)

[57] This finding was firmly grounded in the evidence and is subject to deference. Dr. Klassen observed that while the appellant was compliant with treatment when institutionalized, his history was one of non-compliance when in the community. Dr. Klassen believed that the appellant would initially breach any mandatory medication condition. Given this evidence and the findings of the sentencing judge, I do not agree that a new hearing is required.

[58] A mandatory treatment order can serve the dual function of providing a significant measure of protection for the public while allowing the offender the opportunity to serve his sentence as a long-term offender rather than as a dangerous offender. Its enforcement feature is there to serve as a backstop or assurance that the appellant will continue his initial willingness to comply with treatment as required. If the offender is truly willing and able to change, and the sentencing judge is satisfied that he will comply with mandatory drug treatment once released, hopefully the deterrent effect of the penal consequences of any breach will be sufficient to prevent any lapse. The enforcement feature will not have served its purpose if it is the first resort of an offender who refuses treatment soon after entering the community.

[59] I agree with the appellant that when deciding whether to make a long-term offender or a dangerous offender finding, sentencing judges should consider a mandatory treatment recommendation as one of the conditions of the order, where necessary for the particular offender and where the offender has demonstrated a willingness to comply. However, the sentencing judge in this case made no error by not making that recommendation for this offender and finding that he lacked the commitment to the necessary drug regimes that could sufficiently reduce his risk to reoffend.

[60] I would therefore dismiss the appeal.

Released: “JL” December 27, 2012

“K. Feldman J.A.”

“I agree J.I. Laskin J.A.”

“I agree David Watt J.A.”

Appendix

[61] Prior to the 2008 amendments, the following provisions read as follows:

753. (1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find the offender to be a dangerous offender if it is satisfied

(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing:

(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, [or]

(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour...

(4) If the court finds an offender to be a dangerous offender, it shall impose a sentence of detention in a penitentiary for an indeterminate period.

753.1 (1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that

(a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;

(b) there is a substantial risk that the offender will reoffend; and

(c) there is a reasonable possibility of eventual control of the risk in the community.

[^1]: This sentence was imposed under Part XXIV of the Criminal Code as it read before amendments in 2008. The effect of the amendment is not an issue on this appeal.

[^2]: Materials that were entered as an exhibit at the hearing provide further details (Shandy-Lynn Briggs, CSC and Long Term Supervision Orders, CD-ROM: (Correctional Service Canada, 2008), at p. 6): “CSC [Correctional Service Canada] can issue a warrant of suspension and apprehension, which will hold the long-term offender in custody for a maximum of 90 days. Within that 90 day period, the NPB may take a decision to proceed with recommending the laying of an information for breach of a LTSO condition. This recommendation may be accepted or rejected by the Crown or police. Breaching a LTSO condition is a serious criminal charge with a maximum penalty of 10 years. Laying a criminal charge for breach of condition is the only mechanism CSC has in removing a LTSO offender from the community. Police can also lay a breach of condition charge at any time during the LTSO, under s. 753.3 of the Criminal Code. Once the police lay a breach of condition charge, the CSC warrant expires immediately.” [Emphasis in original.]

[^3]: Although the sentencing judge described the assault as involving forcible non-consensual sexual intercourse, the sexual assault incident as described by the trial judge involved the appellant performing oral sex on the victim, digitally penetrating her and intending to have intercourse but ejaculating before he did.

[^4]: I have included these provisions as they read at the time in the Appendix to these reasons.

[^5]: There have been minor changes in the terminology of these sections as a result of the 2008 amendments to Part XXIV of the Criminal Code.